Posted
by
Soulskillon Friday November 26, 2010 @09:50AM
from the cut-and-paste-your-way-to-innovation dept.

An anonymous reader writes "As if the current situation with software patents wasn't bad enough, it appears a new phenomenon is emerging: companies are watching the commit logs of open source projects for ideas to patent. In this case, Tandberg filed a patent that was step-by-step identical to an algorithm developed by the x264 project — a mere two months after the original commit. The particular algorithm is a useful performance optimization in a wide variety of video encoders, including Theora."

The open source project should file their own patent. Because patents in the U.S. are on a first-to-invent basis, and because they can clearly demonstrate having invented it first, their patent will effectively invalidate the other patent. Then sue the other company for violating the patent, win, and use this to fund many decades of x264 development.

There was also a study (2004?) which showed that getting patents makes you more likely to be the target of patent litigation, and there's a guy in FFII who published a computer science paper only to find that someone else patented an extension of his work a few years later.

This sounds good in theory, but I've come to the conclusion that it's not neccessary that only because you *shold* win you actually *do* win. If you are unlucky, the process will go like: File for a patent, sue, get your own patent invalidated, get sued by company, and go bankrupt.

The most important step is therefor: Get a good lawyer first before trying anything else. I don't know if the EFF or similar foundations would sponsor a lawsuit, or if you'd find enough money by asking for donations, but without any backing the whole process sounds risky.

If that whole legal thing is not your favorite cup of tea, you could give all evidence to PUBPAT or a similar organisation and let them fight the patent. They have more experience dealing with this stuff.

It's too late. 35 U.S.C. 102(b) requires the inventor to file a patent application within one year of the invention being made publicly known. Once you have made that commit, the clock starts. Ideally though, it's much easier to file an application before you publicly release the details.

'Intellectual property' is not an American concept. England is probably the most to blame, but they were going from arbitrary monopolies granted by the king to moderately logical monopolies that somewhat made sense given the primitive state of economics and psychology at the time. The problem is that we haven't progressed, and that we've had escalation occur, often through racheting mechanisms aimed at harmonization.

You are exactly right, this is a serious accusation and he should have contacted Tandberg before making claims like this. And if he had done so he would have found out that the code that the patent was based on was checked in to the Tandberg repository more than half a year before the code in x264 was checked in. Tandberg is preparing an official statement about this as we speak. Making serious accusations like this without first contacting Tandberg is irresponsible and unprofessional.